Page 2266 - Week 06 - Friday, 27 June 2008
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ACTPLA is not mentioned in the wording of section 21 of the old planning act, which gives the minister the power to require an EIS. Regulations provide that the minister has only 42 days after the PA has been lodged to exercise his power under section 121. What if ACTPLA took longer than 42 days to get its submission to the minister? Is he seriously suggesting this would remove his power under section 121 unless he directed that further time was necessary?
It is disturbing that ACTPLA has convinced the minister that their involvement is implied in section 121 of the act. In this instance and many others I cannot see any court reading into the act a requirement that ACTPLA, which is not mentioned in the enabling legislative provisions, must give its opinion to the minister before his power under section 121 is triggered. I stand by what I said on Tuesday, and I suggest that Mr Barr get back to ACTPLA or an independent source of legal advice to clarify his understanding of his own powers because he would look pretty foolish running that particular line in a court or tribunal. If the minister still disagrees I invite him to table the full legal advice supporting his position.
I should say that I think the minister should usually obtain ACTPLA’s comments before exercising his power and, of course, it would be prudent for him to do so.
Mr Barr: Yes, it would.
DR FOSKEY: But there is nothing in the wording of the old act to suggest that this is an automatic constraint on his discretion. In some circumstances, and not these—
Mr Barr: Imagine if you just made a unilateral decision.
DR FOSKEY: I am talking about the legislation, Mr Barr. Obviously we do not have new legislation for no reason at all, but this is the legislation under which that PA was lodged. In some circumstances, not these ones, a court could imply a requirement to obtain advice from ACTPLA or, alternatively, from some other expert source of advice into the act, but it is by no means inherent, as the minister has asserted.
MRS DUNNE (Ginninderra) (4.53): It is really impossible for a budget debate to go by without some reference to the planning authorities. I would like to start where Mr Seselja did, about the planning system, because, in my time in the Legislative Assembly, the opposition has been calling for a long time for a review of the planning system. It was a long time coming and now that it has arrived I think the problems that we are seeing with the simpler, faster, better planning system are quite unsatisfactory.
This was highlighted during the estimates process by the problems that developers are having with the new forms. I will give one example that someone gave to me over a dinner recently. This person—it was not he; it was somebody in his family—had lodged a development application. The development application had gone in and it had been rejected. It had been rejected because not all the boxes on the form were filled out.
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